Summary: The Council was at fault for delays in issuing a decision following an Annual Review and for providing the final Education Health and Care Plan, meaning Ms X had to wait longer to exercise her appeal rights. The Council was also at fault for the way it handled the complaint. The Council has agreed to remedy the injustice caused.

The complaint

1. The complainant, whom I refer to as Ms X, complains the Council delayed in issuing her son’s Education Health and Care plan following his annual review.
2. She also complains the Council did not respond to her original complaint.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. As part of this investigation I considered the complaint from Ms X and the responses from the Council. I discussed the complaint with Ms X over the telephone. I considered the relevant law and guidance. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Law and guidance

7. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
8. The Annual Review of an EHC Plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan. The first review must be held within 12 months of the date when the EHC plan was issued. Any subsequent review must be held within 12 months of any previous review. (The SEN Code of Practice 2015, paragraph 9.169)
9. Within four weeks of the Annual Review meeting a council must decide whether to amend, keep or cease to maintain the EHC Plan and notify its decision to the child’s parents. (The SEN Code of Practice 2015, paragraph 9.176)
10. Where a council proposes to amend an EHC Plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC Plan as quickly as possible and within 8 weeks of the original amendment notice. (The SEN Code of Practice 2015, paragraphs 9.194-6)

The Council’s complaints procedure

11. At stage one the Council has five working days to acknowledge a complaint and 20 working days to provide a response.
12. Following a request to review a complaint at stage two, the Council has 20 working days to provide a complaint response.

What happened

13. Ms X’s son Y has special educational needs and is in receipt of an EHC Plan. On 2 July 2019 Y’s EHC Plan was reviewed at his school. Y’s school sent the Council a copy of the annual review documents alongside a request for an increase in funding on 18 July 2019.
14. In early August 2019 the Council contacted Ms X to say the school had not sent up to date reports and evidence for the increase in funding request. The Council said it would contact Y’s school. On 20 September 2019 Ms X emailed the Council as Y’s school had cut his support to mornings only as it had not received a response to its funding request.
15. On 25 September 2019 Ms X submitted a formal complaint to the Council as it had not issued a decision in writing following the annual review of Y’s EHC Plan. The Council did not provide Ms X a response.
16. On 8 October 2019 the Council received clarification from Y’s school about funding. However the Council said there were further issues it needed to agree with the Y’s school. On 22 October 2019 Ms X submitted another formal complaint as she had not received a response to her first complaint.
17. The Council provided its formal response to the annual review on 27 November 2019 and sent Ms X a proposal to amend form. The Council also provided a copy of the revised EHC Plan.
18. Ms X sent her comments on the draft EHC Plan to the Council on 12 December 2019. She raised a further complaint with the Council on 5 January 2020. Ms X said:
• The Council has delayed in providing a response to Y’s annual review in July 2019.
• She has previously complained two times about this but has not received a response from the Council.
• Y’s EHC Plan is out of date and the Council’s failure to progress this means Y does not have an up to date EHC Plan.
19. The Council provided its stage one response to Ms X on 30 January 2020, however she said she did not receive this. The Council re-sent its stage one response to Ms X on 3 February 2010. In the stage one response the Council:
• Apologised for the delay in issuing the final EHC Plan following the annual review.
• Apologised for not responding to Ms X’s complaint in October 2019.
• Offered Ms X an interim review of Y’s EHC Plan so the Council, school and Ms X could consider whether there are changes in Y’s needs which require changes to his EHC Plan.
20. On 4 February 2020 Ms X asked the Council to move her complaint to stage two. She said the Council did not meet any deadlines in the stage one complaint procedure. She also said she has still not received Y’s EHC Plan following the annual review.
21. The Council issued Y’s final EHC Plan on 5 February 2020. Ms X responded to the Council saying she was disappointed with sections B and F of the plan as she wanted the level of provision in the EHC Plan to be more specific.
22. On 3 March 2019 the Council provided its stage two response to Ms X’s complaint. The Council said:
• It cannot consider sections B and F of the EHC Plan through the complaints procedure and Ms X should either take up to offer of an interim review or appeal to the SEND Tribunal.
• The delays in completing the annual review were due to the school not sending it the correct evidence. Y’s school did not provide details of funding until 8 October 2019 and there were still discrepancies the Council had to negotiate with the school.
• It apologised for the time taken to issue the EHC Plan and for not responding to Ms X’s complaints in September and October 2019.
23. In May 2020 Ms X appealed the content of Y’s EHC Plan at the SEND Tribunal. Prior to a final hearing Ms X and the Council reached an agreement on the issues in dispute and signed a consent order to end the appeal in September 2020.
24. In October 2020 the Council issued Y’s final EHC Plan.

Analysis

Delay in completing the EHC Plan following the Annual Review

25. We expect councils, as the lead agency in the EHC process, to have appropriate commissioning and partnership arrangements in place to address problems that arise.
26. Within four weeks of the Annual Review meeting in July 2019 the Council did not issue its decision to Ms X about whether it intended to amend the plan. This is fault. It took the Council 21 weeks to issue Ms X with its formal response to the Annual Review and provide her with the proposal to amend form. I acknowledge the Council had difficulties with the school over the information it provided to the Council about funding. However, after it received this in early October 2019 it took until 27 November 2019 to send out a formal decision to Ms X following the Annual Review meeting and the amendment notice.
27. Following the Council’s notice to amend which was sent to Ms X on 27 November 2019 it had a further 8 weeks to issue the final EHC Plan however, it did not do so until 5 February 2020. This is also fault.
28. Ms X went onto appeal the content of Y’s EHC Plan. The delay in issuing the Annual Review decision and subsequent EHC Plan meant Ms X could not exercise her appeal rights sooner. Ms X also spent a significant amount of time pursuing this with the Council. Y now has an EHC Plan which specifies the hours of support he requires, and section F is much more detailed. Had the Council not delayed following the Annual Review Y may have had this EHC Plan sooner.

Complaint handling

29. Ms X raised two complaints in September and October 2019 which the Council did not respond to. These both concerned the delays in the Council issuing a decision following the Annual Review of Y’s EHC Plan. Had the Council responded to Ms X’s concerns at this stage it may have been able to attempt to address them at this stage and avoid a further complaint a few months later.
30. As Ms X received no response to her earlier complaints she raised a further complaint in January 2020. From the evidence seen, the Council did not acknowledge this within 5 working days or provide Ms X with a case reference number.
31. The Council has apologised for not responding to Ms X’s earlier complaints, however I do not think this goes far enough and Ms X should receive a payment to reflect the time and trouble she spent pursuing the complaint.

Agreed action

32. Within one month of my final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Apologise to Ms X for the faults identified.
• Pay Ms X £400 to recognise the distress and uncertainty the delay in carrying out the Annual Review caused.
• Pay Ms X £300 to for the failures in complaint handling and for the time and trouble she spent pursuing her complaint.
33. Within eight weeks of my final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Review its policy/procedure to ensure it finishes amended EHC Plans in a timely manner, and within 8 weeks of sending out the amendment notice.
• Ensures it has a plan to chase parties when they do not provide or delay in providing information for Annual Reviews of EHC Plans in a timely manner.

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Final decision

34. I have completed my investigation and found fault by the Council which caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman